[1.] There’s a lot going on in the Trump Administration’s proposed “Compact,” and there’s a lot that we might want to ask about it. Some questions would have to do with whether particular demands (such as a tuition freeze or a 15% cap on foreign students or mandatory U.S. civics classes for foreign students) are a good idea. Some might be and some might not be. Some might have to do with the way that the Compact would rebalance power between universities and the federal government.
Some might have to do with whether particular demands (for instance, the requirement that universities require all applicants to take standardized admission tests) should be implemented top-down on a one-size-fits-all basis. The federal government may have the power to impose certain conditions on the recipients of government funds, but that doesn’t mean that it necessarily should do so. This question of when conditions become excessive micromanagement perennially arises when it comes to government contracts and grants.
Some questions have to do with whether the Executive Branch can impose these conditions through just an announcement, whether this would require notice-and-comment regulatory rulemaking, or whether it would require express Congressional authorization. Similar questions have arisen in the past with regard to whether, for instance, Title IX should be understood to mandate university investigation of alleged sexual assault by students; whether it should be understood as mandating a preponderance-of-the-evidence standard in such situations rather than a clear-and-convincing-evidence; and other matters. In particular, the Compact seems to contemplate conditions on universities’ “preferential treatment under the tax code,” which I expect would likely require revisions to the tax code. But there too there have been controversies about where the Executive Branch has power to read provisions into tax exemption requirements that hadn’t been expressly authorized by Congress (see, e.g., Bob Jones Univ. v. U.S. (1983)).